This appeal against the dismissal of a divorce suit on grounds of cruelty and desertion was dismissed. The High Court held that the appellant failed to prove the necessary ingredients of cruelty or desertion, noting that the existence of a maintenance order barred the plea of desertion.
First Appeal No. 405 of 2018 is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction)
First Appeal No.405 of 2018
Pramod Kumar Prabhakar, s/o Sri Ram Murti Ram, r/o Near Hindu Club, Godhar Basti, PO-Kusunda, PS-Kenduadih, District-Dhanbad .… Appellant
Versus
Rinki Kumari, w/o Pramod Kumar Prabhakar, d/o Kranti Kumar, r/o Jorapokhar, Surendra Gali, Janki Bhawan, PO+PS-Dhansar, DistrictDhanbad, having permanent address-Wajidpur Mohalla, PO+PS-Barh, District-Patna(Bihar) .....Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Kunal Priyam, Advocate For the Respondent : Mr. Amit Kumar, Advocate Mr. Prem Mardi, Advocate Mr. Anuj Kumar Trivedi, Advocate
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O R D E R 10th November 2022
Per, Shree Chandrashekhar, J.
Pramod Kumar Prabhakar whose marriage was solemnized with Rinki Kumari on 18th February 2011 at village Wajidpur in the district of Patna is aggrieved of the Judgment dated 16th August 2018 passed in Title Matrimonial Suit No.457 of 2015 (in short, the divorce suit) whereby the suit has been dismissed on contest. 2. Briefly stated, on an allegation that he found the respondent reluctant at the time of marriage and she did not agree for physical relationship with him, the appellant filed the divorce suit on the ground of cruelty and desertion. He has narrated various incidents which according to him would amount to mental cruelty. In addition to that, he has pleaded that on 17th March 2011 the respondent left his company with an intention to severe the matrimonial relationship permanently and thereafter did not come back to her matrimonial home inspite of his best efforts – lastly on 18th November 2012. The suit was resisted by the respondent by filing a
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written statement denying the allegations of cruelty and desertion made against her by her husband.
III. Whether the marriage of the plaintiff and defendant is fit to be dissolved on the ground of cruelty and desertion?
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examination wherein she has admitted that in the last 8 years she has been staying at her parents' place and, that, she did not take any effort to join the company of her husband in the matrimonial home.
as under:
“26- eSa vius firk ds ?kj vkB lky ls jg jgh gqWaA
27- eSa vius ifr dks vkB lky ds vUnj dHkh ls ugh fpV~Bh fy[k dj ;g lwpuk nh fd eq>s ;gka ls ys pysA
28- esaS dHkh dksbZ odhy ls uksfVl ugh djokbZ fd eSa vius ifr ds lkFk jguk pkgrh gqWaA”
English Translation:
“26. I have been living at my parents' house for eight years.
documentary evidence:
| Exhibit | Document exhibited |
|---|---|
| 1 | Photocopyof JoiningLetter dtd.18.02.2010 |
| 1/a | Photocopyof letter issued bythe Imperial Place, Rajkot |
| X to X/6 | Photocopy of cash memo of jewelery and peremptory cash receipt |
| Y for identification | Photocopy of cash receipt of Punjab National Bank in the name of Rinki Devi. |
| Y/1 for identification | Photocopyof Pass Book. |
| Y/2 for identification | Photocopy of CC of order sheet in Cr. Misc. Case No.40879/2014. |
| Y/3 for identification | Photocopy of order and plaint of Maintenance Case No.211/2016. |
| Y/4 for identification | Photocopyofplaint of TMS No.207/2013. |
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| Y/5 for identification | Photocopyof DutyChart of Pramod Kr. Prabhakar. |
|---|---|
| Y/6 for identification | Photocopy of CC of order sheet and plaint of Misc. Case No.930/2011. |
| Z for identification | Photocopyof Plaint and order sheet of Misc. Case No.483/2013. |
| Z/1 for identification | Photocopyof Letter to O.C Kenduadih P.S. |
stated as under:
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English Translation:
“20. My husband has illicit relationship with his sister-in-law (Bhabhi). I have seen it in 2011 but day and month is not in my memory.”
“51. The word “cruelty” has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner's family are lunatics and that a streak of insanity runs through his entire family is also an act of mental cruelty.”
Hon’ble Supreme Court has observed as under:
“30.........The inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other.”
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ground of cruelty also for the other reasons, such as: (i) institution of CP Case No. 3253 of 2012 by the respondent within a year of the marriage (ii) undertaking given by him in the Court that he would keep his wife with full honor and dignity and (iii) grant of maintenance to the respondent under section 125 of the Code of Criminal Procedure (in short, Cr.PC). The undertakings given by the appellant in a judicial proceeding would stare at the face of the allegations of cruelty inasmuch as it shall be inferred in law that the appellant was the guilty party.
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available to him once he suffers an order under section 125 Cr.PC to pay maintenance to his wife.
“Explanation – In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”
“10. .........If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion; so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus desorendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid…. Desertion is a matter of inference
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to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. ......”
“7. “Desertion” in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end — animus deserendi;
3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include “wilful neglect” of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.”
has held as under:
“7........On my bare perusal and critical analysis of the evidences available on record, I am of the view that plaintiff could not prove
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the ingredients of cruelty and desertion against defendant by his evidence. Therefore, I find and hold that plaintiff has failed to prove the allegation of cruelty and desertion against defendant accordingly, this issues is decided against plaintiff.
8. Issue No.I, II & IV:
Issue No.I: Whether the suit is as framed is maintainable?
Issue No.II: Whether the plaintiff has got a valid cause of action for the suit?
Issue No.IV: What other relief or reliefs the plaintiff is entitled?
As it has already been held that plaintiff has not succeeded to prove and establish the ground of cruelty and desertion against the defendant, he is not entitled to a decree as claimed for so there was no valid cause of action for the plaintiff to bring this suit and accordingly the suit is not maintainable. Thus, these issues are decided against the plaintiff.
9. On the basis of discussion, made-above, and evidence, I have come to clear conclusion that plaintiff has not been able to prove his case against the defendant even to the extent of preponderance of probabilities. Accordingly, I find and hold that he is not entitled to a decree as claimed for. It is, therefore,
O R D E R E D
10. That the suit be and the same is dismissed on contest. Let a decree be prepared accordingly.”
(Ratnaker Bhengra, J.)
(Shree Chandrashekhar, J.)
Jharkhand High Court, Ranchi Dated : 10th November 2022 sudhir/A.F.R.
3 issues framed by the court
Whether the appellant suffered cruelty by the respondent within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
Whether the appellant established desertion by the respondent within the meaning of Section 13(1)(i-b) of the Hindu Marriage Act, 1955.
Whether the grant of maintenance under Section 125 Cr.PC in favor of the wife precludes the husband from claiming divorce based on desertion.
Colour shows how this judgement treated each authority
Naveen Kohli v. Neelu KohliReferred¶50
(2006) 4 SCC 558 · Who else cites this
N.G. Dastane (Dr) v. S. DastaneReferred¶52
(1975) 2 SCC 326 · Who else cites this
Narinder Mohan Arya v. United India Insurance Co. Ltd.Referred¶19
(2006) 4 SCC 713 · Who else cites this
Bipinchandra Jaisinghbai Shah v. PrabhavatiExplained¶24
AIR 1957 SC 176 · Who else cites this
Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri DeviExplained¶26
(2002) 1 SCC 308 · Who else cites this
3 provisions across 2 enactments
Pramod Kumar Prabhakar
Rinki Kumari
Shree ChandrashekhAR
Ratnaker Bhengra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
